R 0005/23 - No petition for review against interlocutory decisions

Key points

• The Enlarged Board (in three-member composition) clarifies that petitions for review cannot be filed against interlocutory decisions of a Board of Appeal.
• The Enlarged Board in headnote (translated): "An interlocutory decision by which a Board of Appeal, in its composition as a substitute Board, has rejected as inadmissible a motion for recusal directed against its three members on the grounds of suspicion of partiality is not a decision against which a petition for review within the meaning of Article 112a EPC can be filed."
• Point 6 of the reasons confirms this holds for any interlocutory decision.
• The Enlarged Board: "The legal consequence of a successful petition for review is, according to Article 112a(5) EPC, the annulment of the decision and the "resumption of the proceedings before the Boards of Appeal"."
• "Accordingly, the review procedure under Article 112a EPC, as the relevant provisions are worded, does not in any event concern decisions which do not terminate proceedings before a Board of Appeal as regards the person concerned."
• " the Enlarged Board of Appeal is of the opinion that the application of Article 106(2) EPC in the context of the review procedure is out of the question. " 
• As a comment, a petition for review filed after the final decision can then also be based (exclusively) on a procedural violation of an interlocutory decision, provided that the petitioner shows that the outcome of the final decision could have been different (and more favourable for it) without the procedural violation; cf. J37/89, r.4.2-4.3 for Art.106(2).

EPO 

The link to the decision and an extract of it can be found after the jump.

https://www.epo.org/de/boards-of-appeal/decisions/r230005du1

Machine translation

1. The petition for review is manifestly inadmissible since the interlocutory decision T 2078/17 of 7 February 2023 is not a decision against which a petition for review can be filed within the meaning of Article 112a EPC.

2. According to Article 112a(1) EPC, any party to appeal proceedings adversely affected by a decision of a Board of Appeal may petition for review of that decision by the Enlarged Board of Appeal.

3. The present petition for review is directed against the interlocutory decision of 7 February 2023, by which the Board of Appeal (in the composition pursuant to Article 24(4) EPC) rejected as inadmissible a motion for objection directed against its three members on the grounds of partiality.

4. However, even if that decision was taken in formal form as an interlocutory decision setting out the reasons for its decision in writing, it cannot be the subject of review proceedings under Article 112a EPC.

5. The legal consequence of a successful petition for review is, according to Article 112a(5) EPC, the annulment of the decision and the "resumption of the proceedings before the Boards of Appeal".

5.1 Rule 108(3) EPC further specifies that, in the case of a reasoned petition for review, the Enlarged Board of Appeal shall order the "reopening of the proceedings before the board of appeal competent under Rule 12b(4) EPC" and also provides that the Enlarged Board of Appeal may order that members of the board of appeal who participated in the annulled decision be replaced.

5.2 A "resumption of proceedings" or "re-opening of the proceedings" (or "re-opening of the proceedings" and "réouverture de la procédure" in the English and French versions of the Rules) presupposes that the decision under review is a decision which has concluded proceedings.

5.3 Rule 106 EPC also indicates that not every decision of a board of appeal can immediately give rise to a request under Article 112a EPC. According to this provision, a request under Article 112a(2)(a) to (d) EPC is only admissible if the procedural violation was raised "during the appeal proceedings" and the board of appeal rejected the objection, unless the objection could not have been raised "during the appeal proceedings".

5.4 The purpose of Rule 106 EPC is, among other things, to give the board of appeal affected by an allegation falling under Article 112a(2)(a) to (d) EPC the opportunity to learn of the alleged procedural violation in good time and, if necessary, to remove the grounds for objection (see also R 4/08, Reasons 2.1; R 14/11, Reasons 2.5 ff.). Only if the objection could not be raised by the party concerned "during the appeal proceedings" is there no prior obligation to object. This rule suggests that an interim decision cannot be the subject of a petition for review if it does not conclude the appeal proceedings against the party concerned.

6. Accordingly, the review procedure under Article 112a EPC, as the relevant provisions are worded, does not in any event concern decisions which do not terminate proceedings before a Board of Appeal as regards the person concerned.

7. The travaux préparatoires for the 2000 revision of the EPC, which was intended to introduce this new legal remedy, also do not indicate anything other than that the review of decisions concluding proceedings was intended (see Basic Proposal for the Revision of the European Patent Convention, MR/2/00 d, 13 October 2000, pages 137 to 143).
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